Principles of Faith-Based ADR

A boy and a girl shuffle along, stalked by the shadow of poverty, disease, violence, and death. They are on their way to work at their father's shop; but it's doubtful they'll even make the short distance, let alone work in the shop for the day. And on the way there will be problems. There will be marauders perhaps, or checkpoints. There will be gunshots again, like the ones that kept them up all night. And they will need to duck and run to make it to the safety of the shop, deep inside the Christian quarter.[1]

This is Nigeria:It is a country of vast wealth, untapped resources and burgeoning modernity. But it is also a country of strife, violence, and corruption. The nation is continually being torn apart by religious strife and sectarian violence.Just yesterday, this boy and girl fled with their father from their home to the police station. An angry crowd had gathered outside their home chanting for the unbelievers to come out, throwing bottles at their windows, shattering the fence posts around their yard.

Images like these are often associated with religious violence. The simmering conflict between Muslims and Christians in Nigeria is all too familiar to those who think about religious violence.Religion is often seen as the genesis of conflict. Wars and genocides, murder and greed are all laid at the feet of faith. And though there is no denying that faith-based conflict exists, all too often the role of faith in encouraging conciliation and mediation is overlooked.

Mediation and conciliation are often the means by which faith-based conflicts are resolved, and principles of faith often play a critical role in facilitating discussion, information-sharing, re-framing disputes and encouraging trust in the dispute resolution process. Those mediating faith-based disputes can often leverage the consensus-building aspects of faith practice to build legitimacy and encourage trust with disputants. Even dispute resolution practitioners working outside the faith-based context will find principles of faith-based mediation helpful in their work.

This is the first of a three-part series that will briefly review practical principles of faith-based mediation from the Jewish, Christian, and Muslim faith traditions to see how they can help resolve both faith-based and secular disputes. This part will look at the concept of sulh in Islamic dispute resolution and how familiarity with sulh can assist practitioners working on faith-based issues or with faith-based clients.

Sulh and Mediation in Islam

Contemporary Western media and academe sometimes mirror the regrettable estrangement between Islamic and Western societies. Popular and academic literatures have focused disproportionately on religious radicalism and militancy, viewing Islam through the lens of terrorism and violence, and neglecting its role as a deeply embedded discourse and affirmative value system in the lives of Muslims. Meanwhile, early Muslim admiration for the West’s achievements has been moderated by perceptions of colonialism, imperialism, and contemporary grievances in the Muslim world.

Modern-day frictions between Western (e.g. non-Muslim) and majority Muslim populations underscore the need to develop comprehensive dispute resolution methods that rely on cross-cultural and interfaith dialogue to promote understanding and build trust. Any such method must accept that although conflict is universal across humanity, the nature of conflict and conflict resolution differ from one socio-cultural context to another.

It is important to recognize that, particularly within Islam, cultural issues often masquerade as or comingle with religious issues. For instance, issues such as the importance of patrilineal families, the questions of ethnicity, relevance of identity, the nature of tribal and clan solidarity, the role of patron-client relationships and the salience of norms concerning honor and shame are better explained in terms of dogma and Islamic ritual -- cultural rather than religious preferences.

Islamic tradition has given importance to and often preferred alternative dispute resolution methods over traditional forms of dispute resolution that arise from Islamic law (or shariah). The concept of dispute resolution is embodied by the word sulh, which in Arabic means "peace" and derives from the Arabic word for "reconciliation."

Though it retains various meanings deriving from religious doctrine and the Qur'an, in modern times sulh conveys a sense of conflict resolution through negotiation. While given less importance in more urban areas of the Islamic world, the concepts underlying sulh retain their importance in the dispute resolution process throughout the Muslim community worldwide (known as the Ummah).

Throughout its history, the Islamic legal system has emphasized the importance of sulh, which embodies the Western concepts of compromise, settlement, reconciliation, and agreement. Focused on determining the truth and dispensing justice with minimal procedural obstacles, the Islamic tradition has always preferred sulh to formal litigation.

The preference for sulh in the Islamic legal system is often a reflection of larger social and cultural attitudes about conflict. In most Muslim-majority countries, for example, the notion of conflict typically carries an exceedingly negative connotation. Often seen as disruptive and dangerous to social cohesion, conflict is something to be avoided. This aversion creates strong incentives to minimize all forms of conflict, even those that might be considered “constructive” in other societies. Understandably, this mindset makes formal litigation an unpopular dispute resolution mechanism, given its inherent adversarial elements.

Instead, sulh sometimes represents the preferred method of conflict resolution in the Islamic legal system (particularly in rural areas of Muslim-majority countries). Though sulh seems similar in many respects to Western forms of mediation, upon closer examination, the actual processes underlying sulh are quite distinct.

The most noticeable difference is that a facilitator is usually far more proactive during a sulh negotiation. Rather than act as a mere neutral observer, the facilitator digs deep into the actual substance of the conflict, directly evaluates the arguments raised by both sides, and actively takes part in negotiating a solution. In many instances, the facilitator must accomplish this without any initial personal interaction among the parties. Such interaction would raise an unacceptable risk of embarrassing a party or exacerbating the situation. Thus, the (usually male) facilitator would likely be called an evaluative mediator in the United States.

Sulh mediation also differs in its dispute resolution focus. In other legal systems, mediators emphasize shared interests and collective problem solving in order to separate the people from the problem. Sulh negotiations, however, take the exact opposite approach. Instead, they prioritize any relational issues, viewing the repair of damaged relationships (whether personal or commercial) as crucial to the restoration of harmony and solidarity among the parties.

Though sulh is employed to resolve all manner of civil disputes, its use is most prevalent in domestic matters. Its focus on the importance of maintaining relationships makes sulh particularly attractive to parties seeking to resolve domestic conflicts. Sulh serves as the primary vehicle for resolving marital disputes in many Muslim-majority countries, especially given the unfavorable standing of divorce in Islamic law.

In the end, the preference for sulh in many Muslim-majority nations is more than mere disapproval of litigation. Instead, sulh as a form of mediation, conciliation and dispute resolution is placed on a pedestal and commonly referred to in the Muslim community (and indirectly in the Qur'an) as “the best of judgments” because of its own inherent virtues.

Muslims have a fundamental obligation to foster peace and harmony within the greater Islamic community. By avoiding the strife and rancor that often accompanies winner-takes-all litigation, sulh plays a vital role in fulfilling this obligation.

Conclusion

To transform the conflicts besetting the world today, we need to uncover the conceptions of peace within our diverse religious and cultural traditions, while seeking the common ground amongst them.

For those mediators dealing with clients from Islamic faith-based traditions or mediating interfaith and intrafaith disputes, knowledge of the concept of sulh can be an effective tool in encouraging reconciliation or transformation. For instance, mediators can endeavor to be more evaluative when dealing with parties in this context, keeping in mind that repairing relationships is just as important as problem-solving when mediating disputes with or among those from Islamic faith-based backgrounds.

In Part Two, we will look at how select Jewish traditions of dispute resolution can assist faith-based ADR practitioners.